Malingering: Advice From Kelowna Lawyers

Wherever there is money to be made, there will always be people who are looking to abuse the system. Many of you may have seen insurance scams uncovered on television and may even know or heard about someone who got “more money then they deserved” as a result of being “injured” in an accident. Kids might refer to these people as “fakers” and you might call these people liars or scam artists.

Personal Injury: Malingering

Malingering is the deliberate creation of false or exaggerated symptoms for external gain. It is most often alleged by defence counsel and insurance companies in cases of soft tissue injury, whiplash, back injury, psychological injury and chronic pain cases. As a society, we are skeptical of what we can not see and since there is rarely any visual evidence of physical injury in these cases, unlike an x-ray broken bone, we tend to question the legitimacy of the injured person’s complaints. Unfortunately, these injuries are also easier to fake or exaggerate the effect and those individuals who abuse the system make it much more difficult for those with legitimate problems.

Personal Injury Cases

The media often adds to the problem, when it reports cases without the crucial facts. For example, lets take the headline “Woman gets $2.9 million for hot coffee”. Sound ridiculous? Imagine this: you pull through the drive through with your 79 year old grandmother. She wants a cup of coffee. You’re the driver. You take the cup and hand it to your grandmother. You pull over as she wants to add cream and sugar (now you know why they do it for you). As she lifts the lid off the cup, the entire contents spills all over her lap and is absorbed by her sweat pants. The coffee is not hot, it’s scalding! The sweat pants hold the scalding liquid against her skin causing full thickness burns to her groin, thighs, buttocks, and genital areas. She has to be hospitalized for 8 days and undergo painful skin grafting and debridement treatments. You also find out that McDonalds has received over 700 claims from people burned by its coffee in the last 10 years and has done nothing about it. Feel any different about the case? These are the facts in the famous coffee case, Liebeck v. McDonald’s. Ms. Liebeck tried to settle her case for $20,000. McDonald’s refused. The jury awarded her $200,000 less 20% for contributory negligence (partly her fault) in compensatory damages and $2.7 million in punitive damages, which is about 2 days of McDonald’s coffee sales. The award was reduced on appeal and eventually settled out of court for an undisclosed amount (see www.ledtlaw.com/files/cur78.htm). Unfortunately, headlines like the one above, create unrealistic expectations for injured plaintiffs and incentive for malingerers.

As opposed to individuals faking injury altogether, what we are more likely to encounter, are those people who have been legitimately injured in an accident, but have a tendency to exaggerate their symptoms and try to prolong their recovery with the hope that it will result in a larger settlement. While we assume malingering is motivated by money, it can also be motivated by drugs, avoiding work, or gaining attention or sympathy. This phenomenon has been studied by the insurance industry, psychologists and psychiatrists in great detail.

Detecting Malingering

To detect malingering, the experts are usually looking for a discrepancy between the symptoms claimed and objective findings (things the doctor can see or feel). However, one of the problems with allegations of malingering is that the signs of malingering can also be signs of psychiatric illness.

To avoid allegations of malingering, you should:

Cooperate with your physician and treatment providers;

Avoid doctor hopping (if possible, see the same doctor throughout your claim);

Be pleasant. Do not act hostile or irritable with people involved in your case;

Follow prescribed treatment;

Be completely honest about your symptoms;

Do not exaggerate the symptoms you have;

Do not report false symptoms;

Be thorough in your reporting to your physician. Do not be vague or evasive;

Do not act excessively needy and demand large amounts of attention;

Return to work when recommended by your physician;

If you are out of work, but are capable of working (even part-time), make a diligent effort to find employment and keep a record of your efforts; and

Try to avoid being preoccupied with your claim.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.